DoDFY2012AnnualFOIA_Report.pdf (PDFy mirror)

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DEPARTMENT OF DEFENSE
FREEDOM OF INFORMATION ACT
ANNUAL REPORT
FOR
FISCAL YEAR 2012

Preparation of this study/report cost the Department of Defense a total of approximately
$225,870.59 for the 2012 Fiscal Year.

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DIRECTOR OF ADMINISTRATION
AND MANAGEMENT
DEPARTMENT OF DEFENSE
FREEDOM OF INFORMATION ACT
REPORT FOR
FISCAL YEAR 2012

Report Period: October 1, 2011 through September 30, 2012

EXECUTIVE SUMMARY

The Department of Defense Freedom of Information Act (FOIA) program processed
66,651 requests for records under the FOIA. Requests were granted in full for 25,672 requests; a
partial release of documents was made in 15,318 requests; and 3,148 requests were denied in full
on the basis of FOIA exemptions. The privacy exemptions, Exemptions 6 and 7(C), were the
most common exemptions, combining for approximately 59% of all exemptions used. The
number of pending FOIA requests for the Department of Defense at the end of fiscal year 2012
was 9,452 an 7.5% reduction from the 10,224 requests pending in the fiscal year 2011.
The number of backlogged requests (those still open past the statutory response time) for
fiscal year 2012 is 6,371, a 12.2% reduction from the 7,260 pending requests at the end of fiscal
year 2011. The backlog was reduced by 1,177 requests. Key components to the backlog
reduction was the effort by the Department of the Army which reduced its backlog by 38% of
requests from 1,000 to 625 requests, the Defense Intelligence Agency which reduced its backlog
by 29% of requests from 1,605 requests to 1,132 requests and the Department of the Navy which
reduced its backlog by 28% from 1,658 to 1,202 requests.
The total cost of processing FOIA requests for the Department of Defense, including
litigation costs, decreased to $75,209,902 in fiscal year 2012 compared to $93,721,676 in fiscal
year 2011. The average cost of processing a FOIA request in the Department of Defense during
this period was approximately $1,128: a decrease of on average $111 per case compared to last
year’s figure of $1,239.

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Table of Contents

Section Page

I. Basic Information Regarding Report 1

II. Making a FOIA Request 1

III. Acronyms, Definitions, and Exemptions 2

IV. Exemption 3 Statutes 7

V. FOIA Requests 13

VI. Administrative Appeals of Initial Determinations of FOIA Requests 23

VII. FOIA Requests: Response Time for Processed and Pending Requests 35

VIII. Requests for Expedited Processing and Requests for Fee Waivers 53

IX. FOIA Personnel and Costs 56

X. Fees Collected for Processing Requests 58

XI. FOIA Regulations 60

XII. Backlogs, Consultations, and Comparisons 61

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I. Basic Information Regarding Report

1. Title, address, and telephone number of person to be contacted with questions about the
report:

Write to: Chief, Defense Freedom of Information Policy Office
1155 Defense Pentagon
Washington, DC 20301-1155

Telephone: [phone]
Toll-free number: [phone]
Fax number: [phone]

Point of Contact: Mr. Paul Levitan
Senior Freedom of Information Act Policy Analyst

2. The electronic address (Universal Resource Locator) for this report is:

http://www.dod.mil/pubs/foi/dfoipo/Annual_FOIA_reports.html

3. You may obtain a paper copy of this DoD Annual FOIA Report for fiscal year 2012 by
telephoning, faxing, or writing to the Defense Freedom of Information Policy Office. A
FOIA request is not necessary. Please include a return mailing address.

II. Making a FOIA Request

1. The DoD Freedom of Information Act Handbook is web based and interactive. It provides
general information about the FOIA Program within DoD and provides basic information
about how to submit a FOIA request. It also contains DoD component addresses, a brief
description of expected response times, and the reason why some requests are not granted.
The DoD Freedom of Information Act Handbook can be found at:

http://www.dod.gov/pubs/foi/dfoipo/foiaHandbook.html

To make a FOIA request to the DoD via the internet use the following:

http://www.dod.gov/pubs/foi/submit_foiaform.html

Using this web page, you can navigate to the FOIA Requester Service Centers for the
Military Services, Combatant Commands, or Defense Department Agencies.
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2. Reasons why some requests are not granted and general categories of agency records.
a. This is a summary of the most frequent reasons for a FOIA request not to be granted:
i. The request is transferred to another DoD component, or to another
Federal Agency.
ii. The request is withdrawn by the requester.
iii. The requester is unwilling to pay fees associated with a request; the
requester is past due in the payment of fees from a previous FOIA request;
or the requester disagrees with the fee estimate.
iv. A record has not been described with sufficient detail to enable the DoD
component to locate it with a reasonable amount of effort.
v. The information requested is not a record within the meaning of the FOIA.
vi. The request is a duplicate request (e.g., a requester asks for the same
information more than once). This includes identical requests received via
different means (e.g., electronic mail, facsimile, mail, courier) at the same
or different times from the same requester.
vii. The record is denied in whole or in part in accordance with one or more
exemptions as set forth in the FOIA.
b. The FOIA exemptions used by the DoD components apply to a number of different
categories of records. Some of these categories are:
i. Acquisition and Contracting,
ii. Personnel,
iii. Intelligence,
iv. Policy development,
v. Military/Operational,
vi. Law Enforcement,
vii. Inspector General.

III. Acronyms, Definitions, and Exemptions
1. Acronyms and terms:
AF Department of the Air Force
AFRICOM U.S. Africa Command
ASBCA Armed Services Board of Contract Appeals
ARMY Department of the Army
CENTCOM U.S. Central Command
DCAA Defense Contract Audit Agency
DCMA Defense Contract Management Agency
DeCA Defense Commissary Agency
DFAS Defense Finance and Accounting Service
DIA Defense Intelligence Agency
DISA Defense Information Systems Agency
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DLA Defense Logistics Agency
DoD Department of Defense
DoDEA Department of Defense Education Activity
DoD IG Department of Defense Inspector General
DSS Defense Security Service
DTIC Defense Technical Information Center
DTRA Defense Threat Reduction Agency
EUCOM U.S. European Command
NAVY Department of the Navy
NGA National Geospatial-Intelligence Agency
NGB National Guard Bureau
NORTHCOM U.S. Northern Command
NRO National Reconnaissance Office
NSA National Security Agency
OSD/JS Office of the Secretary of Defense/Joint Staff
PA Privacy Act
PACOM U.S. Pacific Command
SOCOM U.S. Special Operations Command
SOUTHCOM U.S Southern Command
STRATCOM U.S. Strategic Command
TRANSCOM U.S. Transportation Command
TRICARE TRICARE Management Activity

2. Definitions of terms.

a. Administrative Appeal: A request to an agency asking that it review at a higher
administrative level a full or partial denial of access to records under the FOIA, or any
other adverse FOIA determination.
b. Average number: The number obtained by dividing the sum of a group of numbers by
the quantity of numbers in the group. For example: the average of 3, 7, and 14 is 8.
c. Backlog: The number of requests or administrative appeals that are pending at an agency
at the end of the fiscal year that are beyond the statutory time period for a response.
d. Component: DoD processes requests on a decentralized basis; a “component” is an
entity, also sometimes referred to as an Office, Combatant Command, or Defense
Agency, within DoD that processes FOIA requests.
e. Consultation: The procedure whereby an agency responding to a FOIA request first
forwards a record to another agency for its review because that other agency has an
interest in the document. Once the agency in receipt of the consultation finishes its
review of the record, it responds back to the agency that forwarded it. That agency, in
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turn, will then respond to the FOIA requester. The DoD tracked consultations as FOIA
requests until July 1, 2008. Due to DOJ guidance, they are now tracked and reported
separately.
f. Exemption 3 Statute: A separate federal statute prohibiting the disclosure of a certain
type of information and authorizing it being withheld under FOIA, 5 USC 552(b)(3).
g. FOIA Request: A FOIA request is generally a request to an agency for access to records
concerning another person (i.e. a “third-party” request), or concerning an organization, or
a particular topic of interest. FOIA requests also include requests made by requesters
seeking records concerning themselves (i.e., “first-party” requests) when those requesters
are not subject to the Privacy Act, such as non-U.S. citizens. Moreover, because all first-
party requesters should be afforded the benefit of both the access provisions of the FOIA
as well as those of the Privacy Act, FOIA requests also include any first-party requests
where an agency determines that it must search beyond its Privacy Act “systems of
records” or where a Privacy Act exemption applies, and the agency looks to FOIA to
afford the greatest possible access. All requests which require the agency to utilize the
FOIA in responding to the requester are included in this report.
h. Full Grant: An agency decision to disclose all records in full in response to a FOIA
request.
i. Full Denial: An agency decision not to release any part of a record or records in
response to a FOIA request because all the information in the requested record or records
is determined by the agency to be exempt under one or more of the FOIA exemptions, or
for some procedural reason such as no record is located in response to a FOIA request.
j. Median number: The middle, not average, number. For example, of 3, 7, and 14, the
median number is 7.
k. Multi-track processing: A system in which simple requests requiring relatively minimal
review are placed in one processing track and more voluminous and complex requests are
placed in one or more other tracks. Requests in each track are processed on a first-in/first
out basis. A requester who has a compelling need for records may request expedited
processing (see below).
i. Expedited Processing – an agency will process a FOIA request on an
expedited basis when a requester satisfies the requirements for expedited
processing as set forth in the statute and in agency regulations.
ii. Simple Request – a FOIA request that an agency using multi-track
processing places in its fastest (non-expedited) track based on the low
volume and/or simplicity of the records requested.
iii. Complex Request – a FOIA request that an agency using multi-track
processing places in a slower track based on the high volume and/or
complexity of the records requested.
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l. Partial Grant/Partial Denial: An agency decision to disclose a record only in part in
response to a FOIA request, deleting information determined to be exempt under one or
more exemptions under the FOIA; or a decision to disclose some records in their entirety,
but to withhold others in whole or in part.
m. Pending Request or Pending Administrative Appeal: A request or administrative
appeal for which an agency has not taken final action in all respects.
n. Perfected Request: A request for records which reasonably describes such records and
is made in accordance with published rules stating the time, place, fees (if any) and
procedures to be followed.
o. Processed Request or Processed Administrative Appeal: A request or administrative
appeal for which an agency has taken final action in all respects.
p. Range in Number of Days: The minimum and maximum number of days to process
requests or administrative appeals.
q. Time limits: The time period in the FOIA for an agency to respond to a FOIA request
(ordinarily 20 working days from proper receipt of a "perfected" FOIA request).

3. Short definitions of the nine FOIA exemptions:
a. Exemption 1: classified national defense and foreign relations information
b. Exemption 2: records related solely to the internal personnel rules and practices of the
DoD or any of the DoD Components
c. Exemption 3: information that is prohibited from disclosure by another federal law
d. Exemption 4: trade secrets and other confidential business information
e. Exemption 5: inter-agency or intra-agency communications that are protected by legal
privileges
f. Exemption 6: information involving matters of personal privacy
g. Exemption 7: records or information compiled for law enforcement purposes, to the
extent that the production of those records (A) could reasonably be expected to interfere
with enforcement proceedings, (B) would deprive a person of the right to a fair trial or an
impartial adjudication, (C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to disclose the identity of
a confidential source, (E) would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions, or (F) could reasonably be expected to endanger the life or
physical safety of any individual
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h. Exemption 8: information relating to the supervision of financial institutions
i. Exemption 9: geological information on wells
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IV. Exemption 3 Statutes

Table 1

Exemption 3 Statutes Relied upon to Withhold Information
Number of
Case Number of Times Relied Times Relied
Statute Type of Information Withheld
Citation upon per Component upon by
Agency
5 USC app. Financial disclosure Yes1 AF 2 2
§107(a) information pertaining to
(Ethics in certain government
Government employees
Act of 1978))
5 USC Dispute resolution No ARMY 3 7
§574(j) communications between a
neutral and a party to the DIA 4
dispute
10 USC §128 Unclassified special nuclear No ARMY 1 4
weapons information
NAVY 2
OSD/JS 1
10 USC §130 Certain technical data with Yes2 AF 1 122
military or space application ARMY 42
in the possession of, or CENTCOM 1
under the control of, the
DoDEA 1
Department of Defense
NAVY 64
NSA 4
OSD/JS 7
SOCOM 2
10 USC Personally identifying Yes3 AF 192 765
§130b information of DoD and AFRICOM 12
Coast Guard personnel in ARMY 46
overseas, sensitive or
CENTCOM 139
routinely deployable units
DCMA 2
DLA 2
EUCOM 10
NAVY 251

1 Meyerhoff v. EPA, 958 F.2d 1498, 1500-02 (9th Cir. 1992); Concepcion v. FBI, 606 F. Supp. 2d 14, 33 (D.D.C.
2009), renewed motion for summary judgment granted in part on other grounds, 699 F. Supp. 2d 106 (D.D.C. 2010).
2 Newport Aeronautical Sales v. Dep’t of the Air Force, 660 F. Supp. 2d 60, 65 (D.D.C. 2009); Chenkin v.
Department of the Army, No. 93-494, 1994 U.S. Dist. LEXIS 20907, at *8 (E.D. Pa. Jan. 14, 1994), aff’d, 61 F.3d
894 (3d Cir. 1995) (unpublished table decision).
3Hiken v. DOD, 521 F. Supp. 2d 1047, 1062(N.D. Cal. 2007); O’Keefe v. DOD, 463 F. Supp. 2d 317, 325
(E.D.N.Y. 2006); Windel v. United States, No. A02-306, 2005 WL 846206, at *2 (D. Alaska Apr. 11, 2005).
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